United States: The Paris Agreement: Where We Were, Where We Are, Where We Are Going

On June 1, 2017, President Donald Trump announced that the
United States would withdraw from the Paris Agreement (the
"Agreement"), describing it as "disadvantaging the
United States" and indicating that the United States will
"cease implementation" thereof, unless the United States
can renegotiate its terms. While purporting to be a definitive
statement of U.S. policy, the President's announcement raised
more questions than it answered.

1. Where We Were

The Agreement was the culmination of a four-year negotiation
among the 197 nations that are parties to the United Nations
Framework Convention on Climate Change (UNFCCC). The parties
reached agreement on December 12, 2015, and the United States
formally joined the Agreement on September 3, 2016. Former
President Barack Obama did not send the Agreement to the Senate for
ratification (as would be required for a treaty), but rather relied
on existing authorities to support the United States'
participation, including his authority under Article II of the U.S.
Constitution, federal statutes (including the Clean Air Act) and
the UNFCCC. Central to the conclusion that the Agreement did not
require ratification by the Senate: its terms are aspirational
rather than obligatory.

Before leaving office, President Obama took a number of steps to
implement the pledges made in the Agreement. Under Article 9.1 of
the Agreement, the United States must provide financial resources
to assist developing countries with their obligations under the
UNFCCC. Although the Agreement does not specify how the financial
resources are to be provided, or in what form, the United States
promised to contribute $3 billion to the Green Climate Fund
(GCF)—an initiative designed to help developing countries
meet their "mitigation and adaptation needs." During
President Obama's term, the United States contributed the first
$1 billion to the GCF.1 In addition, pursuant to
Article 4.9 of the Agreement, the United States offered its first
Nationally Determined Contribution (NDC), pledging "to achieve
an economy-wide target of reducing *** greenhouse gas emissions by
26%-28% below *** 2005 level[s] in 2025 and to make best efforts to
reduce *** emissions by 28%."

2. Where We Are

President Trump's decision to withdraw from the Agreement
leaves these and other commitments in doubt. Although President
Trump did not specify how he intends to remove the United States
from the Agreement, reports suggest that the President will follow
the terms of the Agreement providing for withdrawal. Under Article
28, the United States can withdraw from the Agreement no earlier
than November 4, 2020—the day after the 2020
election.2

As such, the United States will remain a party to the Agreement
for the next three and a half years, with a continuing duty to
abide by commitments made thereunder. The extent to which those
commitments require concrete action, however, is unclear.

During his speech announcing withdrawal from the Agreement,
President Trump stated that the United States would make no further
contributions to the GCF. However, this refusal is not necessarily
a violation of the Agreement. Article 9.1 does not mandate that
contributions to developing countries take a specific form or reach
a minimum amount. Accordingly, it could be argued that the $1
billion contributed to the GCF during the Obama administration is
sufficient to satisfy the United States' obligations under
Article 9.1, even if falls short of the United States'
pledge.

Similarly, under Article 13.7 of the Agreement, the United
States must "regularly" provide information, including
national inventory reports of anthropogenic emissions within the
country and "information necessary" to track the United
States' progress toward achieving its NDC. Like other
provisions of the Agreement, however, these reporting requirements
are open to interpretation. Specifically, the Agreement fails to
identify a particular time for such "regular"
communications, or a date by which at least one communication must
be made. The UNFCCC, on the other hand, obligates parties to
publish by April 15 of each year national inventories of
anthropogenic greenhouse gas emissions, and to communicate climate
change mitigation and adaptation measures. To avoid violating the
UNFCCC treaty, the United States must therefore continue to submit
reports for the next three and a half years and beyond.

In addition to fulfilling its UNFCCC reporting requirements, the
United States would be expected (as a member of the Agreement) to
send a delegation to the 23rd Conference of Parties (COP23), to be
held in Bonn, Germany, in November 2017. Given its decision to
withdraw from the Agreement, it is unclear whether the United
States will participate in COP23. Notably, EPA Administrator Scott
Pruitt participated in only a few hours of the recent two-day G-7
environmental summit held in Bologna, Italy.

Perhaps the most consequential question related to compliance
with the Agreement over the next three and a half years is whether
the United States will submit a new NDC. Article 4.9 of the
Agreement provides that each party must create and communicate an
NDC to the UNFCCC every five years. Although the United States
submitted an NDC in 2016, that NDC was developed prior to the Paris
Conference as an "Intended Nationally Determined
Contribution" and was converted into an NDC when the United
States formally joined the Agreement in September 2016. At the time
the Agreement was adopted, the parties requested that nations like
the United States, "whose intended nationally determined
contribution *** contains a time frame up to 2025 *** communicate
by 2020 a new [NDC] and *** do so every five years
thereafter." Hence, the United States is expected to produce a
new NDC prior to the date on which withdrawal from the Agreement
could be effectuated. Failure to do so would flout that
expectation.3

3. Where We Are Going

Further complicating this already thorny thicket, President
Trump appeared to leave the door to future U.S. efforts to combat
climate change open by indicating a willingness to
"renegotiate" the Agreement. If he is serious about that
intention, President Trump would have several options: for example,
he could attempt to negotiate an entirely independent agreement,
revise the existing Agreement or simply modify the commitments the
United States made thereunder.

If President Trump attempted to negotiate a new accord or revise
the existing Agreement, the path of least resistance would be to
work within the UNFCCC treaty. That treaty provides an underlying
framework designed to encourage international cooperation in
combating climate change and has an established schedule of annual
COP meetings during which negotiations could take place. However,
even proceeding through the UNFCCC, any effort to negotiate a new
or revised agreement would face significant hurdles. Several
prominent European nations—including France, Germany and
Italy—have indicated that they will not entertain discussions
toward a new agreement on climate change. Furthermore, Chinese
Premier Li Keqiang stated last week at the 12th China-EU business
summit that "The Paris Agreement represents the broadest
consensus of the international community." "All
parties," he added, "need to jointly safeguard this
hard-won outcome and work for its effective implementation."
Given the public embrace of the Agreement and apparent commitment
to its implementation even without the United States'
participation, world leaders are unlikely to engage with the Trump
administration on efforts to arrive at an entirely new agreement,
or even to revise the existing Agreement.

By contrast, redefining U.S. obligations within the Agreement
would be an easier task. To start, President Trump could modify the
United States' NDC and establish less aggressive goals for
reducing emissions. (As just noted, the United States is expected
to submit a new NDC before 2020). Although Article 4.11 suggests
that NDCs should be altered to ratchet emissions-reduction goals
upward rather than downward, allowing parties to "adjust ***
existing nationally determined contribution[s] with a view
to enhancing [their] level[s] of ambition," downward
adjustments are not expressly prohibited. The President might also
redefine commitments by eliminating, or reducing, U.S. financial
obligations, such as the country's $3 billion pledge to the
GCF. Given the flexibility of the Agreement—as well as the
fact that it was undertaken unilaterally by President Obama without
approval by Congress—President Trump would have substantial
latitude to make these changes.

If President Trump opted to modify U.S. commitments during the
three and a half years prior to withdrawal and/or successfully
propose amendments to the Agreement to make it more favorable to
the United States, he could decide ultimately to remain in the
Agreement, notwithstanding his recent commitment to withdraw.
Indeed, this approach could have a significant political upside: by
announcing a U.S. withdrawal from the Agreement, but later
remaining within it, the President would be able to claim both that
he kept his promises to leave the Agreement because it was a bad
deal for America and that he successfully negotiated a
"better deal," potentially appeasing some who have
steadfastly disagreed with his initial announcement to withdraw.
Arguably, that course of action offers greater potential political
gains than withdrawing entirely from the Agreement and making no
effort to replace it.

The President's stated intention to renegotiate the
Agreement, the political benefits he might derive from doing so and
the significant time lapse before withdrawal from the Agreement can
be completed together present an opportunity for advocacy for
stakeholders on all sides of the issue. Notwithstanding the
administration's current stance on the Agreement—and on
the fight against climate change more generally—advocates may
find success in persuading the administration that remaining within
the Agreement is in the country's (and the President's)
interest.

Footnotes

1. The United States has contributed two $500 million
payments, one in March 2016 and the other in January 2017.

2. Parties to the Agreement can submit notifications of
withdrawal three years after the date on which the Agreement became
effective, which, for the United States, was November 4, 2016.
After submitting notification of withdrawal, the Agreement permits
withdrawal after one year.

3. Of course, the Trump administration's effort to
dismantle the regulatory programs that support compliance with the
existing NDC—the Clean Power Plan and the Methane Initiative,
for example—could also be seen as contravening the spirit of
the Agreement (if not its plain terms) in the years before
withdrawal.

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guide to the subject matter. Specialist advice should be sought
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On Thursday, July 27, 2017, the United States Environmental Protection Agency ("EPA") and the Army Corps of Engineers ("Corps") published the latest iteration in trying to define what are "Waters of the United States."

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